Barry Edward and Thelma June Harrington v Greenwood Grove Estate Pty Ltd [2011] NSWSC 833

Supreme Court New South Wales

Medium Neutral Citation: Barry Edward and Thelma June Harrington v Greenwood Grove Estate Pty Ltd [2011] NSWSC 833 Hearing dates: 9, 10, 11 May 2011 Decision date: 04 August 2011 Jurisdiction: Equity Division Before: Slattery J Decision: The Court declines to grant the injunctions and other orders sought. Catchwords: CONTRACTS - particular parties - vendor and purchaser - contract for sale of land in residential estate - contract annexes management plan for estate - vendor lodges later development application which is inconsistent with management plan - whether express or implied term in contract not to develop the estate inconsistently with management plan - whether collateral contract not to develop estate inconsistently with management plan - whether breach of such term or of a collateral contract - whether injunction should go to restrain the vendor from pursuing its later development application - HELD - no term of the kind alleged is implied into the contract - no collateral contract to the effect alleged - but lodgement and pursuit of the later development application is a breach of an express term of contract regulating the operation of the Management Plan - but the contract is subject to operation of local and state planning instruments which determine whether what would otherwise be a breach of contract has any effect - TRADE AND COMMERCE - Trade Practices Act 1974 (Cth) and related legislation - whether vendor providing management plan to purchaser represented that it would not carry out development inconsistent with the management plan - HELD - representation alleged was made but was modified by terms of contract before being acted upon by purchasers - final representation was to comply with contract and no more - ENVIRONMENT AND PLANNING - environmental planning - planning schemes and instruments - both the Ballina Local Environmental Plan 1987 and the SEPP (Affordable Rental Housing) 2009 provide for the suspension or non-application of covenants agreements and instruments which impose restrictions on the use of land - whether these two planning instruments suspend provisions of the contract restricting development of the estate to that with the management plan - HELD - the two planning instruments do suspend the provisions of the contract restricting development of the estate. Legislation Cited: Conveyancing Act 1919 (NSW), s 88B Environmental Planning and Assessment Act 1979 (NSW), ss 28, 37, 53, 72, 149(2) Trade Practices Act 1974 (Cth), s 52 Cases Cited: BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266 Challister Limited v Blacktown City Council (1992) 76 LGRA 10 Codelfa Constructions Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 Coles Supermarkets Australia Pty Limited v K-Mart Australia Limited [1996] NSWLEC 135 Coshott v Ludwig (1997) NSW Conv R 56,366 Cracknell and Lonergan Pty Limited v Council of the City of Sydney [2007] NSWLEC 392 Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Limited & Ors [2010] NSWCA 214 G.H. Wainwright v Canterbury Municipal Council [1992] NSWLEC 96 Gould v Vaggelas (1984-5) 157 CLR 215 Horizons Corporations Law Pty Limited v Rizons Pty Limited [1999] NSWSC 691 Owens & Anor v Longhurst & Ors [1998] NSWSC 387 Natva Developments Pty Limited v McDonald Bros Pty Limited & Ors [2004] NSWSC 777 Shepperd v Ryde Corporation (1952) 85 CLR 1 SJ Connelly Pty Ltd v Ballina Shire Council [2010] NSWLEC 151 Tarval Pty Ltd v Stevens & Ors (1990) NSW Conv R 55-552 Walton's Stores (Interstate) Limited v Maher (1988) 164 CLR 387 Category: Principal judgment Parties: Plaintiff- Barry Edward Harrington and Thelma June Harrington Second Plaintiff- Paul Francis Hickey and Penelope May Hickey Third Plaintiff- Angus Neil Lambie Fifth Plaintiff- Joanne Scotcher Sixth Plaintiff- Robert Andrew Warren and Katrina Maree Warren Seventh Plaintiff- Jacqueline Ulrick nee Williams Defendant- Greenwood Grove Estate Pty Ltd Representation: Plaintiffs- J.Robson SC, C. Simpson Defendant- P.Tomasetti SC; S.Nash Plaintiffs- Somerville Laundry Lomax solicitors Defendant- McCartney Young Lawyers File Number(s): 2010/246191 Publication restriction: No.